Determining Spousal Support. Divorcing couples often have questions regarding the financial obligations of a higher-earning spouse toward a lesser-earning spouse. In some instances, one spouse may not have held gainful employment at all, leaving him or her with potential financial woes were it not for spousal support ordered through the courts. This complex issue requires the consideration of multiple factors. An experienceddivorce attorney can help you maneuver the paperwork and pitfalls of this and other matters you will encounter in the course of a divorce.

Factors Considered in Determining Spousal Support

Just how much financial support might the court order, and for what period of time? Factors examined will include:

The duration of the marriage/domestic partnership;

Necessities required for each person to maintain a similar standard of living;

Current and potential earnings of each person;

Other obligations, such as child care, that would impact the ability to work;

Health issues and age of the individuals divorcing;

Assets and debts;

Previous support from one spouse to another while getting an education;

History of domestic violence;

Tax issues.

How Long Will Spousal Support Payments be Ordered?

The courts will look at the above considerations and make a determination as to the amount and duration of payments. Generally speaking, payments will last for at least half as many years as the length of the marriage. Some marriages of lengthy duration may require support payments until the remarriage or death of the receiving spouse.

Changes in Support in Future Years

Either partner may request changes in the amount of support at a future date. There are some basic situations in which this might occur:

The financial status of one of the individuals changes significantly, giving the court reason to consider alternative arrangements;

The individual receiving support remarries or enters a domestic partnership;

The court issued aGavron Warning during the initial divorce proceedings, indicating that the supported spouse must work toward self-sufficiency within a reasonable period of time, at which time support would be decreased or eliminated.

What if the Person Ordered to Pay Support Fails to do so?

If an individual ignores a court order to pay spousal support, his or her wages could be garnished. As a last resort the payer could be cited for contempt of court, and jailed for that reason.

If Wages are Garnished, can Employers Punish an Employee?

Employers are not allowed to discriminate against employees due to a court ordered garnishment. An individual who experiences retaliation or loses a job under these circumstances may have a legal case against his or her employer.Continue reading →

Divorcing a spouse that is missing? Is it possible to divorce your spouse when you have no idea where he or she is? The short answer is yes, but you will have to go through some extra work, wait about six months, and you may not get a final court order on the division of resources, child custody issues, and child support. In this situation, hiring an experienceddivorce attorney is a must.

Divorcing by Publication

When a spouse disappears with no forwarding address, divorce may be obtained bypublication. The Petitioner (the person seeking a divorce) must demonstrate that a diligent search has been conducted and the missing spouse was unable to be located. Therefore, that spouse cannot be served, nor can the divorce papers be delivered by certified mail.

Divorcing a Missing Spouse? What is a Diligent Search?

The courts expect that a sincere effort to locate the missing partner has occurred. Thus, anumber of steps must be taken:

A thorough search of phone books and directory assistance in the area where the Petitioner lives and where the missing spouse was known to have lived last;

Talking to friends and relatives who might have knowledge of the missing spouse’s whereabouts;

Contacting the post office in the area where the missing spouse lived to ask for a forwarding address;

Investigating tax and property records to see if the absent spouse owns any property;

Communicating with previous landlords and employers about the location of the missing spouse;

Checking voter registration records;

Hiring a private investigator to try to find the missing spouse.

If, after completing these steps, your spouse still cannot be found, you may submit an Affidavit of Diligent Search to the court. This documents any and all steps you have taken to locate your spouse.

Filing for Divorce

At this stage, you must complete an Ex Parte (Without Notice) Application for Publication of Summons and several other legal documents in order for the court to issue an Order of Publication. The Order allows for the publication of the summons in the newspaper, and it must be published weekly for a total of four consecutive weeks. There must be a minimum of five days between each publication.

Your Spouse’s Rights

Following the four weeks of Publication of Summons plus 28 days, your spouse has another 30 days in which to file a response. Barring any response, you may file a Request to Enter Default Dissolution of Marriage. The divorce will become final six months from the date of the first publication of summons.Continue reading →

Dealing with a divorce can be especially difficult for someone in a long-term marriage .Studies show that men over 65 are divorcing at double the rate of the 1980s and women are divorcing at triple their former rate. In fact, 5% of all divorces in this country are “gray divorces.” Along with the usual splitting of assets that all divorcing couples face, older couples have some unique challenges.

Why Divorce After Decades Together in a Long-Term Marriage?

Older couples have often experienced many significant events together. Some couples grow closer through these life milestones, while others drift apart. With a longer life expectancy, a person in his or her mid-sixties most likely has at least a couple of decades ahead. That can be a long time if an individual is dissatisfied with his or her marriage.

Leaving a Long-Term Marriage

Alimony agreements are frequently short-term for young divorcees who agree that financial support is necessary while one spouse gets an education or a firm footing in the working world. For older divorcees, alimony may be awarded for life. Another significant factor to consider is that retirement funds and pensions will likely be evenly divided. The marriage home may be sold and the money split between partners, or one partner may retain the home and give up something else. California is a community property state, so any assets accrued during the marriage will be split equally.

Another important consideration ishealth insurance. If one partner is covered by the other’s health insurance, it is critical that no gaps in coverage occur. When the divorce is finalized, your spouse’s employer can no longer cover you, even if minor children are covered. Luckily, COBRA coverage may be available if your spouse works for an employer with 20 or more employees. Eligibility depends on notification within 60 days of the divorce, so it is critical that you contact the provider quickly. This coverage lasts only 36 months, so it is important to become familiar with other options if necessary. If a spouse worked for a smaller company,Cal-Cobra is available. Although slightly more expensive and available for just 18 months, it is an option for some former dependent spouses.

Because men often earn much more money during the course of a career,social security benefits may be based on the man’s earnings rather than the woman’s work record. When a marriage has lasted at least 10 years, a woman may be able to enjoy benefits from her former spouse’s work record. The benefits end upon remarriage. If a person is at least 62 years old and is remarried, and the second spouse dies, that person may claim benefits from the first spouse (if the marriage lasted 10 years or more) or from the second spouse (if the marriage lasted 9 months or more prior to the death).Continue reading →

Can my former spousemove out of state and take our child? The question is all too familiar to many individuals who have gone through a divorce. Initially, maybe both parents lived reasonably close and custodial arrangements were relatively simple. But what happens when one spouse gets a job out of state, gets remarried and is compelled to move, or simply chooses to start life over someplace else? What if your ex moves out of state, or just further away without your knowledge or without changes in the visitation agreement? In these situations, an experiencedfamily law attorney might be worth calling.

Child Custody Arrangements – Moving out of State

Physical custody of children in a divorce can either be joint or sole. If the spouse who is moving out of state has sole physical custody of the child, it is presumed any move would involve the child. That being said, both parents must work through an agreement as to what new visitation will look like. This might be done through mediation, but, if that method is unsuccessful, the court will have to make a determination. The spouse who is moving may have to agree to longer visits for the non-custodial parent, and the non-custodial parent may have to live with far fewer visits.

In a joint custody situation, the bottom line is the same. While the court cannot prevent either parent from moving, it can definitely rule against taking a child if the disruption is considered too severe.

Remember, the best interests of the child are always the court’s bottom line. That means considering several issues:

The relationship of the child with each parent;

The relationship of the parents with one another;

The relationship of the child with siblings and step- or half-siblings;

The degree to which visitation is currently utilized;

Whether or not the move is designed to restrict access to the child;

School, routines, etc.;

The wishes of the child, depending on the child’s age;

Quality of life for the child.

Uniform Child Custody Jurisdiction and Enforcement Act

What if the parent who moves wishes for the court in the new state to make custody rulings? The UCCJEA has been adopted in all 50 states and the District of Columbia. It lays out the circumstances under which the court may make a decision regarding custody, and when another state must accept that decision. The general expectations are:

It is the child’s home state, and the child has lived there for the previous six months and has noteworthy connections to the community through schools, medical visits, and/or family;

The child is currently in the state and is at risk of abuse or neglect if sent back to another state;

Another state does not meet the criteria above, or has declined to make any custody decisions.

Are you trapped in an abusive marriage? If you want to get out of the relationship, but have fears about how your spouse will react, you are not alone. Studies show that roughly 40% of women in California suffer fromphysical violence with an intimate partner at some time in their lives. If you find yourself in such a situation, an experienced,discreet attorney may be able to help.

Facts About Abusive Marriages and Domestic Violence

Women aged 18-24 are 11% more likely to have experienced physical violence in the past year than their older counterparts;

Women who were pregnant in the past five years are 12% more likely to experience violence than those who have not been pregnant;

Three-fourths of women who live in violent homes have minor children living in the home;

5% of homicides statewide were related to domestic violence in 2008, with a total of 113 fatalities;

Of those fatalities, 88% were women.

Divorcing an Abusive Spouse – What You Need to Know

If you wish to extricate yourself from and abusive marriage, you may face an angry spouse who threatens your safety and that of your children. Be aware of severalkey points:

A contested divorce will take at least six months;

Courts are more likely to consider physical and/or sexual abuse than emotional abuse, which is an issue when seeking Abuse Prevention Orders;

The court can impound your address, meaning it will be blacked out in all court documents so your spouse will not know where you live;

Restraining/protective orders can be issued requiring your spouse to stay away from you and your children;

If there is not documentation of your injuries, you may be regarded as hysterical, or worse, vengeful in your pursuit to defame your spouse;

You may be asked to go through mediation prior to getting your divorce granted;

Your abuser will likely have some form of visitation rights with your children, meaning you may be in contact for years to come.

Protect Yourself Right Now

The National Domestic Violence Hotline is 1-800-799 SAFE. They can tell you about resources and local agencies that are set up to help women and children who need protection from abusers. In the meanwhile, here are some things you should be doing:

Keep your plans hidden. Do not keep phone numbers, filers or other information related to domestic violence in the home where your abuser may find them;

Have an emergency plan to escape during an violent emergency; keep an overnight bag with prescriptions and other essentials ready to go if you can safely hide one;

Make your plans to leave permanently during an open window of time when your abuser will not be around to stop you;

Try to hide some money or get your own credit card, but make sure you have a PO Box to receive mail;

Find out about shelters that could accept you and your children;

Leave your cell phone behind so your abuser cannot track you;

Keep a journal, pictures, medical bills, and any other documentation if you can do so safely;

Issues with Child custody arrangements? Although divorce and broken domestic partnerships are all too common in the country, your own experience is personal and potentially heart wrenching. Naturally, the most traumatic splits often involve children and custody arrangements. If you are seeking to end your relationship with a spouse or domestic partner and minor children are involved, it is imperative that you have an experiencedfamily law attorney by your side from the beginning.

Considerations in Determining Child Custody Arrangements

California statute expressly commands that the best interests of the child be factored in when determining custody arrangements. A number of specific elements are included in this determination, with an eye toward consistency for the child:

Age of the children;

Relationship with other children in the home;

Type and quality of each parent’s relationship with the child;

Physical and/or mental health of everyone involved;

Parent attitude toward facilitating an continuing relationship with the other parent;

Care-giving history;

Stable and loving setting;

Physical environment and space;

Ability to provide adequately for the emotional and physical needs of the child, including medical care;

Current levels of attachment to the home, school, neighborhood, etc.;

The child’s wishes, when old enough to express them;

Domestic violence issues;

Illegal drug use or abuse of legal substances;

False accusations made by one parent against another.

Potential Child Custody Arrangements

Most people think of custody as having to do primarily with where the child lives, but there is another type of custody worth noting in California:

Legal custody refers to decision-making ability for the child. It may be awarded in one of two ways:

Sole custody: One parent has the final say on all major health, education and welfare decisions;

Joint custody: Parents share all major decisions.

Physical custody may be sole or joint as well. A parent having sole custody has the child most of the time and provides visitation with the non-custodial parent. In a joint custody arrangement, an attempt to provide equivalent amounts of time with each parent is made.

Custody arrangements are always particular to the specifics of each case. In fact, while one parent may have physical custody, the other may have legal custody. A judge whose primary consideration is the best interest of the child views each situation carefully.

Child Visitation

In a situation in which one parent has less than half of the time with a child, visitation orders will be necessary. These comes in many variations, with four basic frameworks:

No visitation: When physical or emotional harm is a risk;

Supervised visitation: When a professional agency, another adult, or the other parent is required to be present during the visit to ensure the child’s safety;

Scheduled visitation: When the court lays out a schedule in concert with both parents;

Reasonable visitation: When parents work out an open-ended visitation agreement based on communications between them.

Community property division in a California Divorce. There is no question but that divorce can be ugly and difficult, or amicable and seamless. Here is something not everyone thinks about right off the bat: divorce can be expensive! Just look at some of these celebrity settlements:

Rupert & Anna Murdoch: Rupert forked over $110 million in cash as part of a $1.7 billion settlement;

Mel & Robyn Gibson: The couple decided an even split of Mel’s $850 million net worth was fair;

Michael & Juanita Jordan: In what appeared to be an amicable settlement, Michael agreed to a $168 million settlement.

Steven Spielberg & Amy Irving: Amy walked away with $100 million after four years of marriage;

It is guaranteed that none of these celebs took on a divorce without competent legal help, and neither should you.

Community Property Division in California

While you may not be a millionaire, you should be clear about the fact that every penny of your shared marital assets is fair game in a divorce. California is a community property state. That means that all assets and debts accrued during the marriage are evenly divided between the divorcing spouses. Whether you own a mansion or are renting an apartment, here is some legal lingo with which you should be familiar:

Marital Property: This includes any earnings that occurred during the marriage, and items obtained with those earnings. The same goes for debt.

Separate Property: This refers to assets accrued prior to the marriage, as well as inheritances, gifts, pension proceeds that were vested prior to the marriage, and items purchased with separate funds. These monies stay with the person who had them to start with.

The Marital Home: Generally the home may stay in the hands of the custodial parent if there are children involved. That parent would be responsible for the mortgage and associated costs, barring a huge income disparity between the parties. Once the children are no longer minors, the house could be sold and the proceeds divided.

Retirement Benefits: Depending on the type of plan, one party may choose to cash-out another, or benefits may be shared as they are paid out.

What About Community Property Division and the Engagement and Wedding Ring?What if the engagement ring was a family heirloom that had passed through the giver’s family for generations? Does the giver have any hope of getting it back? The courts say no—rings purchased and exchanged prior to the I do’s count as personal, separate property, regardless of sentimental value (California Civil Code 1590).

How does one go about terminating a registered domestic partnership in California? When termination of the relationship is the only option, couples who are registered as domestic partners experience not only the emotional devastation common to divorcing spouses, but they must endure many of the same legal expectations as divorcing couples, as well.

Filing a Notice of Domestic Partnership Termination

ANotice of Terminationmay be filed in uncomplicated situations when both parties agree to the separation, there are no children or pregnancies involved, and limited assets are under consideration. In such cases, the termination is final six months from the date of the filing.

In any cases that do not meet these criteria, the parties must undergo a legal separation utilizing the courts to ensure an equitable settlement for everyone involved.

Domestic Partnership and Property Division

Whatever property has been accrued between the time the partnership was registered and the time the couple separated is considered community property. It is divided evenly between the parties. Anything owned prior to that time is considered separate property, and belongs to the original owner.

Domestic Partnership and Child Custody

ChildCustody issues are decided with precisely the same criteria used in traditional divorce cases in California. The courts are directed to consider the best interests of the child, and will look at a number of factors in determining joint or shared physical custody:

The child’s health, well-being, and overall safety;

The status quo and impacts of disruption;

Willingness of the custodial parent to work with the non-custodial parent on issues relating to the child(ren);

The thoughts and wishes of the children themselves if they are old enough to express them;

Any history of drug abuse or violence.

Beyond physical custody, the court will award either joint or sole legal custody of minor children. This give the custodial parent(s) the authority to make major decisions regarding health, education, and so forth on behalf of the children.

Domestic Partnership and Child Support

The court looks at the net disposable income of both parties in order to determine the amount of child support to be paid from a non-custodial parent. This includes income from wages, dividends, social security, or pensions. This is weighed against any payments toward taxes, health care premiums, mandatory union dues, and costs associated with the raising of other children from other relationships.Continue reading →

Transmutation of assets and debts in a California divorce. One of the most difficult aspects facing divorcing couples, aside from issues of child support and child visitation, is the issue of division of property. Some of the most contentious aspects of divorces stem from the identification of separate vs. community property. Since California is a community property law state, the identification of property as either separate or community is critical.

Separate property is defined as any property that a spouse owned prior to marriage, received by gift or inheritance during the marriage, or acquired after the date of separation. Community property is presumed to be any property that was acquired by the couple during the marriage that is not a separate property gift or inheritance. Because California is a community property state, if the parties go to trial with no agreement as to the division of the community property, the court only has the authority to divide the community property equally between the parties on a 50/50 basis. The parties can agree to divide the community property in an unequal division, but their agreement must be in writing, signed by both parties and filed with the court. The separate property of each spouse remains that party’s separate property and will not be divided. For this reason, whether the transmutation of a property is found to have occurred during the marriage is critical to the division of property.

In divorce proceedings, under California law, the transmutation of property occurs when the character of the personal or real property at issue has been “transmuted” or changed from either separate property to community property, or vise versa. See Family Code §850-853.

Why is This Important to Know?

The issue of transmutation of property is important to know for two very critical reasons. First, transmutation may occur unintentionally, without the parties knowing it; and second, it may not seem important to the parties unless they are facing divorce and then it may be too late to do anything about it.

An Example of the Transmutation of Real Property

Say the husband purchases a piece of income property prior to marriage. After marriage, wanting to take advantage of a lower interest rate, he decides to refinance the property. Both husband and wife sign the loan documents in order for the couple to qualify for the refinanced loan. At the end of the refinance transaction, husband signs a deed transferring title to the property from himself to both he and his wife. Husband has effectively transmuted his separate interest in the real property to the community. This is only one example of how separate property can be transmuted into community property.

Family Code §852 – Requirement of a Written Declaration

Before 1985, married couples could effectively transmute their separate property to community property by “words” alone. This led to major difficulties for the court in its efforts to determine who said what and when, or who was telling the truth about the transmutation and who was not.

After the enactment of Family Code §852, the law required that any attempts to transmute the character of any property during the course of a marriage must be evidenced by a writing and signed by the party to be charged. For more information on this issue, please consult a family law attorney. Continue reading →

Determining Child Custody and Visitation Through Mediation. No parent wants to have to fight for time with his or her children. In an ideal world, parents would see their children as often as possible and would never disagree about what is best for them. When parents do not live together, where the children should live and when they see each parent can become a contentious issue. Whether it is part of a divorce or the parents were never married, mediation may be the best way to create a consistent and beneficial parenting plan for the children.

What is Mediation?

Mediation is a form of alternative dispute resolution that is used to avoid going to court. The parties along with their legal counsel and a third-party mediator meet to discuss the issues and come to an agreement. An attorney is not required, but having a lawyer to counsel you on your rights reduces the risk of you agreeing to an unfair settlement.

The purpose of the mediator is to have an objective person who can help the parties come to a compromise. He or she facilitates communication and keeps the conversation focused on what matters.

Once the parties come to an agreement, the final decision is put into writing, and depending on the situation, submitted to court for approval. An agreement reached during mediation is not binding, but once it becomes a court order, it is.

Mediation and Divorce

Sometimes couples choose to use mediation for their divorce. Instead of arguing through attorneys and only meeting in court, mediation allows for spouses and their legal representatives to meet in a confidential and safe environment to discuss their options. It is often faster and cheaper than taking the entire process through the court system.

Mediation for Child Custody and Visitation

In some child custody proceedings in California, a judge will require parents to work with a mediator to decide on custody. This may be after the case is transferred to family conciliation court, if the country has established one, or while the case remains with the superior court.

A judge may feel it is important for parents to sit down and talk and come to a decision about what is best for their children before he or she has to step in a decide for them. Even if it is not required by a judge, parents may find it best to go to mediation to tackle child custody issues instead of trying to do it on their own.

A mediator helps parents focus on what is best for the children, how they can maximize time with their children, and how to move past issues of anger and resentment for the children. Continue reading →